Legal issues arising from the RIAA's lawsuits of intimidation brought against ordinary working people, and other important internet law issues. Provided by Ray Beckerman, P.C.

Monday, June 15, 2009

First day of testimony in Capitol Records v. Thomas-Rasset

The afternoon began with opening statements from the both sides.

Plaintiffs began by describing their industry and stating that their businesses are made up of "real people" who work to make musical recordings available to the public, from singers and songwriteres to graphic artists, talent scouts and others who many others involved in the process of purchasing tracks that the public can purchase.

They described that their industry has been greatly hurt in the past several years and they have been forced to engage in many layoffs and loss of revenues which they attribute to illegal distribution of music on the internet. They explain that they bring this case to show that Jammie Thomas violated copyrights in twenty-four of their sound recordings.

They went through the plain statement of their case, that they retained MediaSentry to use programs like KaZaA in the same manner as any other internet used by any internet user to locate tracks and download them. They then associate the information provided by MediaSentry with information they recieve pursuant to subpoena to internet service providers to identify those who they believe are responsible.

They described many of the witnesses they intend to call who will testify that a user identified by the alias tereastarr@KaZaA infringed on their copyrights and that the person responsible is Jammie Thomas-Rasset. The list of witnesses mentioned went through record company employees, experts, internet service provider employees, and others.

They also explain that no evidence will be shown of other distributions to internet users other than MediaSentry and give two explanations. First is that the KaZaA application does not keep records or logs of distributions, and second that the KaZaA network is designed so that no one else knows what distributions are occuring.

They then described other evidence that they intend to produce, such as that the tereastarr alias is unique to Jammie Thomas-Rasset and that the music tastes of those files they identified as being shared match those of the defendant, and that defendant intended to cover up the fact that she used KaZaA by replacing her computer hard drive.

Defense opening is much shorter and explains that if the jury believes everything that the plaintiffs tell them that they have only demonstrated that the transfers of music files did occur, and that no witness could testify that the defendant was the one who did them.

He then went on to describe that the plaintiffs in this case are asking for up to $3.6 million dollars be awarded for the claims of twenty-four infringing works, and that their initial claim of more than 1,700 music files would mean that by their damage theroy they could ask for an award of $250 million dollars, against a single individual defendant.

Defense claims that the recording industry will attempt to show Ms. Thomas-Rasset is at the center of an internet stealing ring - all occuring from the bedroom of her apartment.

Mr. Camara also offered another explanation for why the hard drive produced by defendant was not the one in her computer on February 21st, 2005. Defense offers that in March of 2005 the defendant's son hit the machine after playing a video game and that afterwards it would only start up to a blank screen. Defendant brought the computer to Best Buy, where it was purchased and warranted and that Best Buy made the decision to install a new hard drive since the previous one had failed.

Defense also states that Ms. Thomas is an avid music fan and that evidence will be shown that she has purchased over two hundred CDs, including CDs of all the tracks plaintiffs are suing for damages over.

He closes by asking the jury to look for "any evidence that Jammie Thomas did it" and then let her tesify to "prove it wrong".

The first witness was Gary Leak, general counsel for Sony Music Entertainment. He explains the organization of Sony into several labels, two of which are plaintiffs in this case. He begins by describing what goes in to making a track of music and all of the parties that go in to it. He then is asked about MediaSentry and how they gather evidence. Most of Mr Leak's testimony from this point forward is objected to by defense because Mr. Leak lacks personal knowledge of what went on in this specific case and that a foundation has not been established for the evidentiary exhibits they intend to introduce with him as a witness. After several sidebar conferences the only evidence admitted is eight certified copies of copyright registrations by Sony's labels, and CDs corresponding to those songs. He is asked about the copyright notices on these CDs and points them out for the jury.

Upon cross examination Mr. Leak was asked if several artists were ever employees of Sony Music Entertainment. He responded that to the best of his knowledge none of them had been, and that they had contracts with Sony whereby works they produced would be works made for hire.

He then asks Mr. Leak questions about what he thinks an appropriate amount of damages would by against Ms. Thomas-Rasset. He initially simply says that they are seeking statuatory damages which the jury should award, but does admit they are seeking up to $150,000 per work. He says that a "message should be sent" with the award.

He is also asked about what else the labels are doing in regards to combating illegal file-sharing. He states four things, educational campaigns, litigation against services which allow music to be distributed, litigation against individuals believed to have engaged in copyright infringement and working with ISPs. He is asked what the industry is doing in the U.S. with ISPs to which he has no knowledge, and the testimony briefly strayed towards France before Plaintiffs objected and were sustained on issues relating to the French "3-strikes" law.

Next witness was Chris Connelly from MediaDefender/MediaSentry. He was questioned by Mr. Oppenheim. He described the process they use to collect information, mainly that they do the same thing as any other internet user could do except for two things: they have automated tools to use KaZaA and other networks and that they collect additional evidence as these automated tools use the software. He testified that they tested this automated software and that it had a "zero error rate".

At this point most of the MediaSentry evidence was admitted as Mr. Connelley described it. Screenshots, user logs, download logs, system logs, and CD-Rs made of MP3 files that MediaSentry acquired. Mr. Camara objected to some of this testimony on the workings of the technology and KaZaA as Mr. Connelley was not an expert, but these objections were overruled.

He also testified that MediaSentry had no evidence of files distributed to anyone other than MediaSentry for the same reasons brought up in the opening. He additionally offered testimony of IM messages sent via KaZaA to tereastarr@KaZaA warning of copyright infringement. He claimed under direct questioning that these messages would not be something that a KaZaA user would typically ignore since they present themselves as pop-ups in the middle of the computer screen.

Mr. Camara's questioning of Mr. Connelley focused at first on his claim of a "zero error rate". Mr. Connelley testified that the claims of a zero error rate were backed up by other clients of MediaSentry, and also admitted that no one else has access to or reviewed the code MediaSentry used in its automated processes. He also claimed, interestingly, that he beleived no one had ever asked to examine the source code and that if such a request was made he would think that it would be granted by the company under some sort of confidentiality agreement.

He then asked about the instant messages and whether or not the application could be configured to suppress these, he testified that he believed it could but that it was not the default behavior. This matter was questioned on redirect and recross and the result of the testimony was that MediaSentry collected evidence that the computer that the instant messages were sent to did recieve them, but he had no way of knowing that they were ever displayed and that they were never replied to.

Final witness of the day was from Charter Communications. The subpoena upon charter and the response was moved in to evidence and the witness described the methods used by Charter to tie an IP address with a specific date and time to a modem MAC address back to their billing system which has the individual contact information and e-mail address.

The initial legal notice that Charter sent to Ms. Thomas was also displayed and initially the witness claimed that it was sent via Federal Express, so that it would not likely be something that would be missed by the defendant. Upon cross-examination she admitted that she had no way of knowing whether or not the defendant noticed this letter or whether or not she had recieved it.

Trial then broke for the day. There are two motions that counsel was instructed to brief the court on by midnight and will be heard at 8am tomorrow morning. Plaintiffs asked that they be provided with breifs that they claim defense had already written, but the court stuck with the initial instruction of briefing by midnight for argument tomorrow morning.

9 comments:

The "zero error rate" will be what they put on MS's grave. Did they mention the dead person, the homeless man, or the half a dozen other examples where they have gotten the initial identification wrong.

They sent notice via fedex?! Don't they have procedures for serving notice on someone that guarantee that they receive the notice?

I wonder who will be the first to use Mr. Connelley own statements in order to demand production of the source code for MS's tools.

Regarding the hard drive that was replaced at Best Buy...I'm a Geek Squad agent and the program we use to keep track of orders goes back at least until 2002, with the one to track purchases going back to the late 90's. Shouldn't her lawyer have gotten a hold of that order to completely dispel any notion that she was trying to cover things up?

They also explain that no evidence will be shown of other distributions to internet users other than MediaSentry and give two explanations. First is that the KaZaA application does not keep records or logs of distributions, and second that the KaZaA network is designed so that no one else knows what distributions are occuring.

To this man this case should have ended exactly at this moment. Plaintiffs admit that they cannot prove that any distribution has ever occurred. End of infringement. Why did this go on for even another second?

Also since they know that KaZaA never kept any logs, why did they need to perform a forensic anal exam of the suspect computer's hard drive? What could they have ever been legally looking for? The mere presence of music files, or even a completely legal P2P program, does not prove distribution. Are they searching for leftover browser files? someone's personal resume? Fishing is more like it.

I am a business lawyer in New York City, practicing at Ray Beckerman, P.C.. The purpose of this site is to collect and share information about the wave of sham "copyright infringement" lawsuits started by four large record companies, and other areas of concern to digital online copyright law, and to internet law in general. -Ray Beckermanbeckermanlegal.com(Attorney Advertising)

"[T]he Court is concerned about the lack of facts establishing that Defendant was using that IP address at that particular time. Indeed, the [complaint] does not explain what link, if any, there is between Defendant and the IP address. It is possible that Plaintiff sued Defendant because he is the subscriber to IP address .... As recognized by many courts, just because an IP address is registered to an individual does not mean that he or she is guilty of infringement when that IP address is used to commit infringing activity." -Hon. Barry Ted Moskowitz, Chief Judge, S.D. California. January 29, 2013, AF Holdings v. Rogers"The complaints assert that the defendants – identified only by IP address – were the individuals who downloaded the subject “work” and participated in the BitTorrent swarm. However, the assumption that the person who pays for Internet access at a given location is the same individual who allegedly downloaded a single sexually explicit film is tenuous, and one that has grown more so over time." - Hon. Gary R. Brown, Magistrate Judge, E.D.N.Y. May 1, 2012, K-Beech v. Does 1-37"The concern of this Court is that in these lawsuits, potentially meritorious legal and factual defenses are not being litigated, and instead, the federal judiciary is being used as a hammer by a small group of plaintiffs to pound settlements out of unrepresented defendants."-Hon. S. James Otero, Dist. Judge, Central Dist. California, March 2, 2007, Elektra v. O'Brien, 2007 ILRWeb (P&F) 1555"The University has adequately demonstrated that it is not able to identify the alleged infringers with a reasonable degree of technical certainty...[C]ompliance with the subpoena as to the IP addresses represented by these Defendants would expose innocent parties to intrusive discovery....[T]he Court declines to authorize discovery and quashes the subpoena as to Does # 8, 9, and 14" -Hon. Nancy Gertner, Dist. Judge, Dist. Massachusetts, November 24, 2008, London-Sire Records v. Does 1-4"[C]ounsel representing the record companies have an ethical obligation to fully understand that they are fighting people without lawyers... that the formalities of this are basically bankrupting people, and it's terribly critical that you stop it...." -Hon. Nancy Gertner, Dist. Judge, Dist. Massachusetts, June 17, 2008, London-Sire v. Does 1-4"Rule 11(b)(3) requires that a representation in a pleading have evidentiary support and one wonders if the Plaintiffs are intentionally flouting that requirement in order to make their discovery efforts more convenient or to avoid paying the proper filing fees. In my view, the Court would be well within its power to direct the Plaintiffs to show cause why they have not violated Rule 11(b) with their allegations respecting joinder. [I]t is difficult to ignore the kind of gamesmanship that is going on here.....These plaintiffs have devised a clever scheme... to obtain court-authorized discovery prior to the service of complaints, but it troubles me that they do so with impunity and at the expense of the requirements of Rule 11(b)(3) because they have no good faith evidentiary basis to believe the cases should be joined." -Hon. Margaret J. Kravchuk, Magistrate Judge, District of Maine, January 25, 2008, Arista v. Does 1-27, 2008 WL 222283, modified Oct. 29, 2008"[N]either the parties' submissions nor the Court's own research has revealed any case holding the mere owner of an internet account contributorily or vicariously liable for the infringing activities of third persons.....In addition to the weakness of the secondary copyright infringement claims against Ms. Foster, there is a question of the plaintiffs' motivations in pursuing them..... [T]here is an appearance that the plaintiffs initiated the secondary infringement claims to press Ms. Foster into settlement after they had ceased to believe she was a direct or "primary" infringer." -Hon. Lee R. West, District Judge, Western District of Oklahoma, February 6, 2007, Capitol v. Foster, 2007 WL 1028532"[A]n overwhelming majority of cases brought by recording companies against individuals are resolved without so much as an appearance by the defendant, usually through default judgment or stipulated dismissal.....The Defendant Does cannot question the propriety of joinder if they do not set foot in the courthouse." -Hon. S. James Otero, Central District of California, August 29, 2007, SONY BMG v. Does 1-5, 2007 ILRWeb (P&F) 2535"Plaintiffs are ordered to file any future cases of this nature against one defendant at a time, and may not join defendants for their convenience."-Hon. Sam Sparks and Hon. Lee Yeakel, District Judges, Western District of Texas, November 17, 2004, Fonovisa v. Does 1-41, 2004 ILRWeb (P&F) 3053"The Court is unaware of any other authority that authorizes the ex parte subpoena requested by plaintiffs."-Hon. Walter D. Kelley, Jr., District Judge, Eastern District of Virginia, July 12, 2007, Interscope v. Does 1-7, 494 F. Supp. 2d 388, vacated on reconsideration 6/20/08"Plaintiffs contend that unless the Court allows ex parte immediate discovery, they will be irreparably harmed. While the Court does not dispute that infringement of a copyright results in harm, it requires a Coleridgian "suspension of disbelief" to accept that the harm is irreparable, especially when monetary damages can cure any alleged violation. On the other hand, the harm related to disclosure of confidential information in a student or faculty member's Internet files can be equally harmful.....Moreover, ex parte proceedings should be the exception, not the rule."-Hon. Lorenzo F. Garcia, Magistrate Judge, District of New Mexico, May 24, 2007, Capitol v. Does 1-16, 2007 WL 1893603"'Statutory damages must still bear some relation to actual damages." Hon. Michael J. Davis, Dist. Judge, U.S.District Court, Dist. Minnesota, January 22, 2010, Capitol Records v. Thomas-Rasset"[T]his court finds that defendants' use of the same ISP and P2P networks to allegedly commit copyright infringement is, without more, insufficient for permissive joinder under Rule 20. This court will sever not only the moving defendants from this action, but all other Doe defendants except Doe 2." -Hon. W. Earl Britt, District Judge, Eastern District of North Carolina, February 27, 2008, LaFace v. Does 1-38, 2008 WL 544992"[L]arge awards of statutory damages can raise due process concerns. Extending the reasoning of Gore and its progeny, a number of courts have recognized that an award of statutory damages may violate due process if the amount of the award is "out of all reasonable proportion" to the actual harm caused by a defendant's conduct.[T]hese cases are doubtlessly correct to note that a punitive and grossly excessive statutory damages award violates the Due Process Clause....."Hon. Marilyn Hall Patel, Dist. Judge, N.D. California, June 1, 2005, In re Napster, 2005 US DIST Lexis 11498, 2005 WL 1287611"[P]laintiffs can cite to no case foreclosing the applicability of the due process clause to the aggregation of minimum statutory damages proscribed under the Copyright Act. On the other hand, Lindor cites to case law and to law review articles suggesting that, in a proper case, a court may extend its current due process jurisprudence prohibiting grossly excessive punitive jury awards to prohibit the award of statutory damages mandated under the Copyright Act if they are grossly in excess of the actual damages suffered....."-Hon. David G. Trager, Senior District Judge, Eastern Dist. New York, November 9, 2006, UMG v. Lindor, 2006 U.S. Dist. LEXIS 83486, 2006 WL 3335048"'[S]tatutory damages should bear some relation to actual damages suffered'....(citations omitted) and 'cannot be divorced entirely from economic reality'". -Hon. Shira A. Scheindlin, Dist. Judge, Southern Dist. New York, August 19, 2008, Yurman v. Castaneda"The Court would be remiss if it did not take this opportunity to implore Congress to amend the Copyright Act to address liability and damages in peer to peer network cases.... The defendant is an individual, a consumer. She is not a business. She sought no profit from her acts..... [T]he damages awarded in this case are wholly disproportionate to the damages suffered by Plaintiffs." -Hon. Michael J. Davis, District Judge, Dist. Minnesota, September 24, 2008, Capitol v. Thomas"If there is an asymmetry in copyright, it is one that actually favors defendants. The successful assertion of a copyright confirms the plaintiff's possession of an exclusive, and sometimes very valuable, right, and thus gives it an incentive to spend heavily on litigation. In contrast, a successful defense against a copyright claim, when it throws the copyrighted work into the public domain, benefits all users of the public domain, not just the defendant; he obtains no exclusive right and so his incentive to spend on defense is reduced and he may be forced into an unfavorable settlement." US Court of Appeals, 7th Cir., July 9, 2008, Eagle Services Corp. v. H20 Industrial Services, Inc., 532 F.3d 620"Customers who download music and movies for free would not necessarily spend money to acquire the same product.....RIAA’s request problematically assumes that every illegal download resulted in a lost sale."-Hon. James P. Jones, Dist. Judge, Western Dist. Virginia, November 7, 2008, USA v. Dove